United States pulls out of Iran Deal – II

(This post is authored by Bhavesh Seth, a fifth year student of National Law School of India University, Bangalore)

On 8th May, 2018, US President Donald Trump announced USA’s withdrawal from the Iran nuclear deal, formally known as the Joint Comprehensive Plan of Action (‘JCPOA’). President Trump criticized the “poorly negotiated” deal for failing to restrict Iran’s destabilizing activities in the Middle East. He complained that the deal did not sufficiently address threats from Iran’s ballistic missile programme, and said that in any case, Iran was not complying with it. Despite the IAEA affirming that Iran has been meeting its commitments under the JCPOA and several experts confirming that the deal is working, the US is withdrawing from the deal and sanctions are scheduled to resume by November 2018.

Predictably, the most vocal critics of this decision were Russia and Iran, both of which criticized the withdrawal as a gross violation of international law. Iran has rejected any further negotiations with USA and demands compensation for its withdrawal from the parties still in the JCPOA. Needless to say, it considers USA’s withdrawal illegal. Reactions in Europe were more restrained, with Germany, France, and UK issuing a joint statement which regretted President Trump’s actions and reaffirmed their commitment to the JCPOA. Federica Mogherini, the EU’s foreign policy chief, issued a strong reminder – the JCPOA is not a bilateral agreement and as such, could not be terminated unilaterally.

Geo-politics aside, are Russia and Iran correct? Did USA violate international law by withdrawing from the JCPOA and re-imposing secondary sanctions against Iran? This post closely analyses the JCPOA and relevant Security Council resolutions to conclude that it did.

Implementing the Agreement

To begin with, the JCPOA is not a treaty. Page 6 of the JCPOA explicitly refers to all relevant commitments as “voluntary measures”, belying any intention to create legal obligations under international law. Instead, it is merely an agreement between Iran, the EU, and the P5+1 that consists of political commitments, but is devoid of binding legal authority. The decision to enter into an agreement instead of a treaty provided the parties a great deal of flexibility, enabled a speedy conclusion of the agreement, and crucially, allowed the Obama Administration to sign the deal. US constitutional law requires approval from the Senate before entering into any international treaty. By concluding the deal as a political agreement, USA evaded a Republican Senate that staunchly opposed it.

Interestingly, the implementation of the JCPOA is tied to the UN Security Council. In 2015, the Council unanimously adopted Resolution 2231 to address Iran’s nuclear situation. This resolution endorsed the JCPOA and set out a schedule for the roll back of international sanctions against Iran, including those unilaterally imposed by USA. The roll back was to take effect on ‘Implementation Day’, the day on which Iran successfully implemented its nuclear-related commitments under Annex V of the JCPOA. On 16th January 2016, the International Atomic Energy Agency verified Iran’s compliance with these requirements, triggering USAs sanctions-related commitments outlined in the JCPOA. The rest of this post argues that the call for implementing the JCPOA was a decision of the Security Council, and therefore these commitments are binding under Article 25 of the UN Charter.

The Legal Effect of Security Council Resolutions

Under Article 25 of the UN Charter, “members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” In its Advisory Opinion on Namibia, the ICJ confirmed that decisions, as opposed to mere recommendations, are legally binding. The practice of the Council has been to adopt decisions in Resolutions passed under Chapter VII of the UN Charter, and to use specific language such as “decides” or “demands”. However, in the same decision, the ICJ emphasized that there is no single test to determine whether the resolution is binding. This must be assessed on a case-by-case basis by analysing the terms of the resolutions, the Charter provisions invoked, the discussions leading up to its adoption and all other circumstances that may assist in determining its legal consequences. Essentially, in identifying whether a resolution is a decision or not, the objective is to locate the SC’s intention to create legally binding obligations.

Thus, the fact that a resolution was not adopted under Chapter VII of the UN Charter does not preclude the possibility of it being legally binding. Similarly, it matters little whether a resolution uses “calls upon” as opposed to “decides” or “demands” as operative phrases – its legally binding status may be confirmed by other relevant factors. This was the ruling of the ICJ in its Advisory Opinion on Namibia, where they upheld the legally binding character of Resolution 276, which called upon all states to refrain from any dealings with the Government of South Africa with respect to its occupation of Namibia.

Resolution 2231 – decision or not?

Operative paragraph 1 of Resolution 2231 urges the full implementation of the JCPOA and operative paragraph 2 calls upon all member states to support its implementation. Earlier resolutions placing sanctions on Iran’s nuclear program similarly use the phrase “calls upon” to create legally binding obligations. For instance, Resolution 1696 called upon Iran to implement transparency measures requested by the IAEA and act in accordance with the provisions of the Additional Protocol. These obligations were considered mandatory in the debate leading up to the adoption of the resolution. Similarly, Resolution 1737 called upon States to restrict the movement of individuals associated with the development of Iran’s nuclear weapon delivery systems through their territories. While discussing the resolution, USA insisted on “absolute adherence” to these commitments, indicating that the Resolution was legally binding.

Discussions leading up to its adoption

The debate leading up to the adoption of Resolution 2231 confirms that the Security Council sought to ensure compliance with the JCPOA. The President of the Security Council at the time noted that the adoption of Resolution 2231 gave “international legal force to the agreement reached in Vienna and extend[ed] the obligations it contains across the broader United Nations membership.” Echoing this belief, France considered the Resolution a guarantor of the JCPOA’s implementation. Similarly, UK encouraged State parties to live up to their commitments under the agreement and reiterated the importance of the Council in ensuring States fulfil their respective obligations. According to the US representative, mere agreement on global norms relating to the proliferation of nuclear weapons wasn’t enough – all members of the UN must take concrete steps towards their enforcement.

Adoption under Article 25

That the SC made a decision in Resolution 2231 is further confirmed by the express invocation of Article 25 in its preambulatory paragraphs, which reminds States of their obligation to implement Security Council decisions. The adoption of Resolution 2231 under Article 25 is important for two reasons. First, it evidences the Council’s intention to create legally binding commitments for member states. Second, it distinguishes Resolution 2231 from other SC resolutions that have similarly endorsed international political agreements, but were not considered as binding. For instance, in 2003, Resolution 1515 endorsed the Roadmap for Peace as a solution to the Israeli-Palestinian Conflict and called upon states to fulfil their corresponding obligations. As the text of the resolution neither made reference to Article 25, nor detailed an implementation plan for member states, it was not considered legally binding. Resolution 2231 does not share these flaws.

Other relevant factors

Reacting to USA’s withdrawal from the Agreement, Germany, UK, and France called Resolution 2231 the “binding international legal framework for the resolution of the dispute about the Iranian nuclear programme.” As noted by the ICJ in its Advisory Opinion on Kosovo, the interpretation of Security Council resolutions may require recourse to the subsequent practice of affected states. On 27th June, 2018, the Security Council met to discuss the implementation of Resolution 2231 for the first time since USA announced its withdrawal from the JCPOA. Russia criticized the Secretary General’s 5th report on the implementation of Resolution 2231 for ignoring the illegality of USA’s sanctions against Iran. Overwhelmingly, members of the Council noted their concern and regret over USA’s actions, and reaffirmed their commitment towards successfully implementing the JCPOA.

Conclusion

A comprehensive analysis of Resolution 2231 shows that it was intended to protect the implementation of the JCPOA. It used language earlier used to create binding obligations and was adopted under Article 25, reminding states to comply with their commitments. While this may seem like a rather complicated approach to creating legal obligations for States, it has been done before. In 2013, the Council adopted Resolution 2118, which endorsed an OPCW decision detailing a programme for the destruction of Syria’s chemical weapons. Just as with the JCPOA and Resolution 2231, this converted a political commitment into a legal obligation. USA’s decision to re-impose sanctions against Iran is a material breach of the obligations under Resolution 2231, and as such, entails international responsibility.

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